Court Upsets Physical Test For Children In Sex Abuse

By JOSEPH F. SULLIVAN,

Published: April 3, 1992

TRENTON, April 2—
The New Jersey Supreme Court ruled today that courts may not compel children who are victims of sexual abuse to undergo physical examinations at the request of defendants without first determining that there is a substantial need for the tests.

The court overturned lower-court rulings that dismissed an indictment because a 10-year-old victim who had been examined by a physician for the state refused to have a second test.

The trial court, the Superior Court in Somerset County, recognized a previous ruling by the State Supreme Court that judges should exercise "great care" in ordering young sex-abuse victims to undergo psychiatric or psychological examinations but decided that physical examinations did not hold the same potential for harm as psychological tests.

The trial court said children routinely go to doctors for physical tests, "including examination of their privates and other sensitive parts of the body," and saw no harm in ordering the young girl in the disputed case to undergo a second examination. 'Clearly Erred'

The State Supreme Court, in a 7-to-0 opinion written by Justice Alan B. Handler, said the trial court "clearly erred" in determining that a physical examination relating to suspected sex abuse "does not constitute an invasion of privacy and does not create a substantial risk of serious harm to the child in the form of emotional trauma and mental distress."

"The harmful consequences of a physical examination on child sex-abuse victims dictate that a criminal defendant cannot insist on untrammelled or unconditional discovery rights to such an examination," Judge Handler said.

"Many courts have concluded that physical examinations of child sex-abuse victims generate the same harmful consequences that arise from psychological examinations," he added. He cited opinions handed down over the last six years in Alabama, Colorado, Kentucky, Minnesota, New York, North Carolina and Rhode Island requiring defendants to have a compelling reason to ask for physical exams for abuse victims.

The Appellate Division of Superior Court had upheld the trial court in dismissing the indictment, reasoning that the defendant's right to challenge the initial examination outweighed the girl's right to privacy.

In overturning both opinions, the State Supreme Court said "criminal discovery has its limits" and may not be transformed "into an unfocused, haphazard search for evidence."

The court ordered the indictment reinstated against the defendant, who was identified as the boyfriend of the girl's mother, but indicated it was unlikely the case would go very far.